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Court of Appeal, Second District, Division 4, California.

James O'DONNELL, Plaintiff and Appellant, v. Murray FELDSHER et al., Defendants and Respondents;  Southern California Gas Company, Intervener and Appellant.

No. B047407.

Decided: February 19, 1992

Gordon, Edelstein, Krepack, Grant, Felton & Goldstein and Steven J. Kleifield, Los Angeles, for plaintiff and appellant. Nazila Y. Levy, Los Angeles, for intervener and appellant. Burns, Ammirato, Palumbo, Milam & Baronian and Bruce Palumbo, Pasadena, for defendants and respondents.

Plaintiff/appellant James O'Donnell (appellant) appeals from the judgment entered upon the granting of the motion for summary judgment of defendants/respondents Murray and Marilyn Feldsher (respondents).   Appellant is joined in this appeal by his employer, plaintiff in intervention Southern California Gas Company (the Gas Company).   Appellant's complaint against respondents had sought damages for injuries he allegedly sustained when he slipped and fell on the wet, tiled entryway of a home owned by respondents.

As we conclude that triable issues of material fact exist, we reverse the judgment.


On August 7, 1985, appellant filed a personal injury complaint against respondents.   Therein, he alleged that on September 17, 1984, he was injured on respondents' premises, located in Bradbury, as a result of the premises being negligently maintained and operated.

On December 27, 1985, respondents answered.   As affirmative defenses, respondents pleaded the contributory/comparative negligence of appellant and causation by unknown third parties.

On September 26, 1989, respondents filed a motion for summary judgment or, alternatively, for summary adjudication of issues.   Respondents asserted that appellant was barred from recovery by the doctrine of implied assumption of the risk.

Respondents' statement of undisputed facts and supporting documentation provided the following factual support for their position:  At the time of appellant's injury, the property was owned by respondents but was leased to John and Sue Jordon;  the tiled entryway was installed before respondents purchased the property;  during the night prior to the incident, it had rained and appellant had seen puddles on the streets in the neighborhood;  as a Southern California Gas Company employee, appellant was making a service call on the premises;  he arrived about 10:00 a.m. and noticed Ms. Jordon hosing down the “parking area near the front entryway and the entryway”;  appellant was told that the only access to the premises was through the front door as there were large dogs in the rear;  appellant's shoes were wet and their soles had a slippery deposit from pine needles and leaves found throughout the yard, driveway and entryway;  before he fell, appellant knew that the entryway was wet and was concerned about his footing;  appellant successfully crossed the entryway twice before he fell;  the Jordons had not hosed down the entryway after appellant entered the first time;  and when appellant fell, he had been watching out for the wet spots on the tile.

In opposition, the Gas Company agreed that the facts stated by respondents were not in dispute.   It asserted, however, that one material fact remained in dispute:  whether appellant was aware of the risk involved in crossing the wet entryway.

In his opposition, appellant asserted that the doctrine of implied assumption of the risk had not survived Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.   In any event, appellant asserted, triable issues of fact existed.   He filed a response to respondents' statement of undisputed facts.   He agreed that most were not in dispute;  however, he asserted that although it had rained the night before, the tile was “basically dry” when he fell;  he knew the entryway was wet and he was concerned about his footing.   However, he “lacked knowledge of just how slippery the tile was.”   In appellant's statement of disputed facts and supporting documentation, he asserted that he “did not know that the tile on which he fell was unduly slippery when wet.”

In support, appellant filed, among other things, the declaration of Charles E. Turnbow, a registered professional safety engineer, licensed in California since 1978, who had testified as an expert witness over 600 times.   He declared that upon examination of the entryway, it was his opinion that the tile used in the entryway was inappropriate for areas that might be exposed to water because it did not provide adequate traction;  the coefficient of friction on the surface is sufficiently low such that slipping is likely to occur on every step;  it would be very difficult for a person walking on the tile to determine by visual inspection that it was more slippery than ordinary outdoor tile when wet;  there was a substantial defect in the walkway surface which created a hazardous and dangerous condition to the pedestrian.

On November 3, 1989, the court granted the motion;  however, it did so on a ground not asserted or argued by the parties.   The court determined that respondents had no liability, as a matter of law, because they were non-possessory owners at the time of the incident.

The Gas Company unsuccessfully moved for reconsideration.   Judgment was entered on November 15, 1989.   This timely appeal followed.


“The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic and should be used with caution.   [Citation.]  Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried.  [Citations.]  [¶] ‘The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.’  [Citation.]  ‘The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.’  [Citation.]  ‘․ [I]ssue finding rather than issue determination is the pivot upon which the summary judgment law turns.’  [Citation.]”  (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35–36, 210 Cal.Rptr. 762, 694 P.2d 1134.)


 Appellant asserts reversal of the judgment is required because the court based its ruling on an issue not propounded by the moving party and not discussed by any party;  triable issues of fact exist as to that issue;  and, in any event, summary judgment should not have been granted on the grounds raised by respondents.

We agree.   As the court reasoned in Folberg v. Clara G.R. Kinney Co. (1980) 104 Cal.App.3d 136, 140, 163 Cal.Rptr. 426:  “An appellate court must sustain a summary judgment if the trial court's decision is right upon any theory of the law applicable to the case, ․ regardless of the considerations which may have moved the trial court to its conclusion.  [Citations.]  But the basis for a summary judgment is the absence of triable fact issues [citation], and if a point is not argued below by the moving party and the record does not establish that the opposing party could not have shown a triable fact issue had the point been raised, the appellate court cannot determine whether the trial court's decision was ‘right’ upon that point.  [Citation.]  This is true whether the point is first raised on appeal or was first raised by the trial court in rendering its decision.”  (Internal quotation marks omitted.)

Here the only ground asserted by respondents in support of their motion was that because appellant was fully apprised of the wet condition of the entryway, he was barred from recovery by the doctrine of implied assumption of the risk.   Respondents did not argue that appellant was barred from recovering from respondents because they were non-possessory owners.   Such a finding inherently involves issues of material fact which appellant was precluded from identifying.  (For example, did the non-possessory owner know of the dangerous condition of the property?   If not, should the owner have inspected the property, learned of the dangerous condition, and taken steps to maintain it in a safe condition?  (See Swanberg v. O'Mectin (1984) 157 Cal.App.3d 325, 329–333, 203 Cal.Rptr. 701).)

Respondents contend that through its motion for reconsideration, the Gas Company had an opportunity to argue against the court's finding.   To accept this position, however, would ill serve the procedural requirements found in Code of Civil Procedure 437c, created to insure an opposing party adequate notice of the basis for a motion for summary judgment.

We next consider whether the motion for summary judgment could properly have been granted for the reasons stated in the moving papers and conclude that it could not.

Appellant contends that the separate defense of implied assumption of the risk did not survive Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, which defined the doctrine of comparative negligence.   There is some support for this position.  (See Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 169, 191 Cal.Rptr. 578;  6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, §§ 1089 and 1090, pp. 492–494.)   At present, however, the support is not unanimous and, in fact, our Supreme Court has granted review of a number of cases which address the issue.1  We find it unnecessary to attempt to reconcile the various positions because, even assuming the defense has survived Li v. Yellow Cab Co., the record here indicates that triable issues of material fact exist as to whether appellant unreasonably assumed the risk, i.e., did appellant have actual knowledge and appreciation of the risk involved?  (See Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 161–162, 265 P.2d 904.)

 When deposed, appellant testified that while he had been aware of the wetness of the entryway when he first arrived, he also saw that as time passed, the entryway appeared to become “mainly dry, but [with] damp areas.”   In his answers to interrogatories propounded by respondents, appellant stated that he “only knew that the surface was wet, but did not know of the slippery spots caused by leaves, etc.”   The declaration of the expert indicated that, in the expert's opinion, a layperson would not be able to tell whether the particular tile used in the entryway would be slippery when wet.   Mindful of the applicable standard of review, we conclude that this evidence demonstrates that a material issue of fact exists as to whether appellant appreciated the risk involved in walking across the wet or recently wet entryway.

Having reached this conclusion, we need not and do not discuss appellant's argument that as respondents failed to plead assumption of the risk as an affirmative defense, they were precluded from asserting it as a basis for summary judgment.


The judgment is reversed.   Appellant is awarded costs on appeal.



1.   See, e.g., Hacker v. City of Glendale (1991) 235 Cal.App.3d 157, 279 Cal.Rptr. 371;  Van Meter v. American Motors Sports Assn. (1991) 234 Cal.App.3d 707, 278 Cal.Rptr. 288;  Knight v. Jewett (1990) 232 Cal.App.3d 1142, 275 Cal.Rptr. 292;  Ford v. Gouin (1990) 234 Cal.App.3d 684, 266 Cal.Rptr. 870.

COOPER, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

ARLEIGH WOODS, P.J., and EPSTEIN, J., concur.

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